Wednesday, August 28, 2019

NLRB Strengthens Employers’ Right to Bar Non-Employee Protests

The National Labor Relations Board (NLRB or the “Board”) has yet again reversed precedent and created a new employer-friendly rule regarding non-employees engaging in leafletting on an employer’s premises. In a prior 2011 decision involving the New York New York Hotel in Las Vegas, the Board had held that employers could only prohibit leafletting by non-employees on the employer’s property when such activity would “significantly interfere” with the employer’s use of the property. This was a difficult standard for employers to meet, and, fortunately for employers, they may now have greater flexibility. 

On August 23, 2019, the NLRB decided Bexar County Performing Arts Center d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019). The Board overruled New York New York and held that a property owner not involved in an underlying labor dispute could prohibit leafletting and similar protected activity by off-duty employees of a licensee or contractor performing work on the property owner’s premises. In Tobin Center for the Performing Arts, the respondent property owner operated a performing arts center that was used by several groups, including the San Antonio Symphony and Ballet San Antonio. During a performance by Ballet San Antonio, San Antonio Symphony musicians passed out leaflets accusing Ballet San Antonio of depriving them of work by performing to recorded music rather than with live accompaniment. The property owner refused to allow the musicians to continue leafletting and kicked them off the property.

An NLRB Administrative Law Judge (ALJ) found that the property owner violated the National Labor Relations Act by prohibiting the leafletting, but the Board reversed. Notably, the Board held that non-employee contractors and licensees do not possess the same Section 7 access rights as a respondent’s own employees. Therefore, the Board reasoned, the off-duty musician contractors were trespassers and only allowed to engage in the on-premises leafletting if they did not have any other “reasonable alternative nontrespassory channels of communicating with their target audience.” The Board found that the symphony musicians had other means of communicating with their target audience, because they could distribute leaflets on a public sidewalk across the street from the performance arts center. The Board also noted that musicians could have used other channels to convey their message, such as social media, newspapers, television, and radio.

Tobin Center for the Performing Arts is yet another example of the Trump-controlled NLRB scaling back some of the broad employee rights granted by the Obama-controlled NLRB. Going forward, employers and property owners that have groups of contractors and licensees working on their properties will have greater ability to enforce their property rights against non-employees seeking to call attention to various labor grievances.

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